Jharkhand High Court
Ram Kumar Lal vs State Of Jharkhand & Anr. on 21 February, 2015
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
Cr. M. P. No. 07 of 2002
An Application under Section 482 of the Code of Criminal
Procedure, 1973
Ram Kumar Lal, son of late B. P. Srivastava, resident of Koyala Nagar,
District Dhanbad at present working as Director (Technical) of M/s.
BCCL (Bharat Coking Coal Ltd.), Dhanbad
.......... Petitioner
Versus
1. The State of Jharkhand
2. Range Officer of Forests, Chas Forest Range, Chas, District Bokaro
.......... Opposite Parties
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
For the Petitioner : Mr. Anoop Kumar Mehta, Advocate
For the State : Mr. Awani Kant Prasad, A.P.P.
For the O.P. No. 2 :
___
By Court: Heard the learned counsel for the parties.
In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with B.F. Case No. 28 of 2001 including the order dated 13.6.2001 passed by the learned Chief Judicial Magistrate, Chas, whereby and whereunder, cognizance has been taken for the offence punishable u/s 33 of the Indian Forest Act.
It appears that on the basis of a report from the Forest Guard, a complaint was lodged against the petitioner and other accused persons in which it was alleged that when the Forester, Chandankiyari inspected the place of occurrence situated at Amlabad it was found that M/s. BCCL (Bharat Coking Coal Ltd.) was carrying underground mining works for extraction of coal since long and in this regard information was sought for from the Project Officer, Amlabad vide letters dated 12.3.2001 and 5.4.201 that underground mining works are being carried out about 300 ft. underneath in 142.58 acres of forest land and coal is being extracted. It has further been alleged that on being asked, the local villagers had revealed that in Amlabad Mouza, Revenue P.S. No. 213 coal was being extracted from the underground mines situated on Plot Nos. 2, 51, 78, 820, 821, 822, 813, 231, 197, 162, 187 which have been notified as forest land vide Notification No. C/F-17014/58-1429(R) dated 24.5.1958.
The learned counsel for the petitioner has submitted that the petitioner was at the relevant point of time posted as the Director of M/s. BCCL having its office at Dhanbad. It has been submitted that in fact underground coal mining activities was being carried out prior to nationalization by the ex-colliery owner since 1916 and after vesting by the coal company M/s. BCCL without any objection whatsoever. It has further been submitted that the petitioner was 2. never posted in the Amlabad Project of M/s. BCCL and that the petitioner has been said to be made vicariously liable for the alleged offence u/s 33 of the India Forest Act although there is no concept of vicarious liability in the statute itself. Accordingly, it has been prayed that the entire criminal proceeding against the petitioner be quashed.
On the other hand, the learned counsel for the State has submitted that M/s. BCCL was carrying out underground mining activities over a substantial area of the forest land and such activities on the part of the company was in violation of the provisions of the Forest Act and the petitioner being the Director (Technical) of M/s. BCCL (Bharat Coking Coal Ltd.), Dhanbad cannot be absolved of his liability from being prosecuted u/s 33 of the Indian Forest Act.
After hearing the learned counsel for the parties and after going through the records, I find that the prosecution report was submitted against three accused persons including the petitioner in his capacity as Director (Technical) of M/s. BCCL (Bharat Coking Coal Ltd.), Dhanbad. It is also an admitted fact that underground mining activities were being carried out by M/s. BCCL beneath the forest area since long. So far as the allegation made in the prosecution report is concerned, save and except inclusion of the name of the petitioner in the column of accused, there is no specific or direct allegation against him of committing any offence u/s 33 of the Indian Forest Act . With respect to the contention of the learned counsel for the petitioner that there is no concept of vicarious liability under the Indian Forest Act and the Director of the Company cannot be made vicariously liable for any offence committed by the company itself, reference has been made to the judgments in the case of Maharashtra State Electricity Distribution Company Limited and another v. Datar Switchgear Limited and others reported in (2010) 10 SCC 479 and in the case of Fasiuddin & others v. State of Bihar (now Jharkhand) reported in 2012 (3) JCR 602 (Jhr.) as also the order dated 31.7.2014 passed in Cr.M.P. No. 800 of 2009 in the case of Krishna Kumar Poddar v. State of Jharkhand. In the case of Maharashtra State Electricity Distribution Company Limited (Supra) it has been held as follows:-
"30. It is trite law that wherever by a legal fiction the principle of vicarious liability is attracted and a person who is otherwise not personally involved in the commission of an offence is made liable for the same, it has to be specifically provided in the statute concerned. In our opinion, neither Section 192 IPC nor Section 199 IPC incorporate the principle of vicarious liability, and therefore, it was incumbent on the complainant to specifically aver the role of each of the accused in the complaint. It would be profitable to extract the following observations made in S.K. Alagh:3.
"19. As, admittedly, drafts were drawn in the name of the company, even if the appellant was its Managing Director, he cannot be said to have committed an offence under Section 406 of the Penal Code. if and when a stature contemplates creation of such a legal fiction, it provides specifically therefor. In absence of any provision laid down under the statute, a Director of a company or an employee cannot be held to be vicariously liable for any offence committed by the company itself."
In the case of Krishna Kumar Poddar and others v. State of Bihar (Now Jharkhand) (Cr. M.P. No. 800 of 2009), while considering the order passed in the case of the Fasiuddin & others v. State of Bihar (now Jharkhand) & another (supra) it was held in paragraph-6 as follows:-
"6. After having heard the learned counsels for both sides and upon going through the records, I find that the case of the petitioner is fully covered by the decision of this Court in Md. Fasiuddin's case (supra). It is apparent from the offence reports dated 30.4.2005, 2.5.2005 &
25.4.2005 that the petitioner was not present at the place of occurrence and there is no allegation against him therein, nor is he named therein. Only in the prosecution reports the petitioner had been made accused, being the proprietor of Chotanagpur Graphite Industries, without making any specific averment or allegation against him."
Similar is the present case inasmuch in the prosecution report/ offence report there is no averment made with respect to the active/ direct involvement of the petitioner in the commission of forest offence. Merely because the petitioner happens to be Director of M/s. BCCL at the time of the incident, the same by itself would not make him liable to face criminal prosecution.
As has been stated above, in absence of there being any averment with respect to the direct complicity of the petitioner in the forest offence, this application deserves to be allowed. In view of the law laid down by the Hon'ble Supreme Court as well as the judgments referred to above, I do find that no prosecution can be attached with the petitioner in absence of any concept of vicarious liability in the statute.
Accordingly, there being merit in this application, the same is allowed and the the entire criminal proceeding in connection with B.F. Case No. 28 of 2001 including the order dated 13.6.2001 passed by the learned Chief Judicial Magistrate, Chas, whereby and whereunder, cognizance has been taken for the offence punishable u/s 33 of the Indian Forest Act is quashed.
(Rongon Mukhopadhyay, J) st Dated the 21 , February, 2015 Jharkhand High Court, Ranchi MK/N.A.F.R.